FCC order could cost schools billions

Corey Murray, Associate Editor

January 1st, 2006

Critical of a new federal order that could cost colleges and universities an estimated $7 billion to renovate their existing computer networks so law enforcement officials could conduct remote wiretaps, a coalition of university presidents, lobbyists, and other education stakeholders on Nov. 15 filed comments with the Federal Communications Commission (FCC) requesting an exemption.

The filing represents the latest salvo in an ongoing dispute between the federal government and academic institutions over the reach of an 11-year-old law known as the Communication Assistance for Law Enforcement Act, or CALEA.

The law, intended to help catch terrorists and other criminals, originally was written with telephone carriers in mind. But thanks to the rapid evolution of the internet and other forms of digital communication, federal officials at the Justice Department and elsewhere want to extend the law to cover broadband and voice-over-internet protocol (VoIP) services as well. As with traditional wiretaps, the law stipulates that a court order must precede internet surveillance, thus muting the debate over civil liberties and shifting the argument to costs.

The law’s original intent was to outfit existing telephone networks with devices that would enable federal agents to eavesdrop on phone conversations from remote locations. The law was extended last year after Justice Department officials said the growth of the internet and other broadband-based communications was making it difficult to keep tabs on tech-savvy criminals. Under the extension, public computer networks that transmit voice communication via IP telephony also must be equipped with wiretapping capabilities.

Published to the Federal Register in late October, the FCC’s order–which applies this extension to schools, too, at the schools’ own expense–met with heavy criticism from university lawyers and others in the education community, who estimate that the cost to colleges and universities alone could top $7 billion, while doing little to help the government apprehend suspected felons.

“The higher-education community is sympathetic to law enforcement’s need to access internet communications,” said Mark Luker, vice president of the nonprofit EDUCAUSE, a leading voice in the opposition to the expand CALEA. “However, we feel it is clear that Congress never intended CALEA to extend to the internet, and that the negative impact on the education and library community would far outweigh any benefit that law enforcement would gain by including them in this ruling.”

Critics contend the new order, meant to extend CALEA to the internet, values the government’s pursuit of fugitives above the interests of education. According to the FCC, organizations–including universities and large K-12 school districts–that serve as providers of internet access and broadband phone service to customers must purchase and install the required technology by spring 2007.

“The cost to standardize these networks would just be overwhelming for schools,” said Wendy Wigen, a policy analyst for EDUCAUSE, in an interview with eSchool News. “Talk about an unfunded mandate!”

In its comments to the FCC, members of The Higher Education Coalition, a consortium of 16 different educational organizations and university systems, including EDUCAUSE, calls the order “ambiguous” and asks the government to clarify whether educational institutions that operate their own private networks are exempt from CALEA.

“If the law is interpreted the way it should be, it shouldn’t impact school districts, it should impact providers,” said Keith Krueger, head of the Consortium for School Networking (CoSN), a Washington-based nonprofit group that lobbies for issues related to the effective integration of technology in K-12 schools and a coalition member.

But there’s a problem, says Wigen: As the law is currently written, there is no sure way to determine whether it’s the responsibility of the institution or of the technology vendor to ensure compliance.

In a worst-case scenario, she said, every school and university system in the United States that serves as a provider of internet-based communications and telephone services would face the prospect of replacing their full suite of switches and routers to meet the basic needs for federal wiretapping. In some cases, she said, the cost could be as low as $2 million. For larger state institutions, those costs could exceed $25 million per institution, according to figures provided by EDUCAUSE analysts. “It all depends on the number of students,” she said.

Even if the FCC decides not to exempt educational institutions, Wigen said, the coalition’s hope is that the government at least will provide special accommodations or exceptions to the rule, wherein schools can apply for discounts or have the requirements waived following some type of formal application process.

Where CALEA compliance is non-negotiable for certain institutions, including local law enforcement agencies and government offices, the coalition argues that extending the law to schools “is neither necessary to national security nor otherwise in the public interest.” Aside from the fact that surveillance requests are believed to be infrequent–just over 1,700 wiretaps reportedly were authorized all of last year–the coalition says that when requests are made, educational institutions have a good track record of cooperation. On the reverse side, they say, the costs of full CALEA compliance would have a “serious, detrimental impact” on school budgets, forcing unnecessary tuition hikes and making school leaders think twice before upgrading essential communications networks.

The coalition also has requested that any compliance requirements be phased in over a period of five years, and not the 18 months specified in the ruling.

The FCC has refused to elaborate on its plans with regard to the order. But officials have said publicly that they will consider any comments received in the interest of educational institutions. Whether or not they will extend the timetable for compliance currently is unclear.

Meanwhile, unrest in academia continues to mount. “I’m getting the sense that a lot of universities are very concerned,” said Wigen, who added that CALEA was a major topic of conversation at her organization’s national conference in Orlando in October.

If the FCC refuses to make changes to the order based on the coalition’s comments, she said, there still are opportunities to challenge the law.

As part of a three-pronged strategy to prevent the federal government from extending the reach of the latest FCC order to educational institutions, the coalition also has filed suit in the District Court of Washington, D.C., challenging the legality of the order. Other efforts include asking members of Congress to reexamine the original bill. If the court overturns the order based on the coalition’s complaint, Wigen said, it likely will become an issue for Congress. If not, any decisions about exemptions will become an issue for the Justice Department.

“How fast all of this is going to progress is anyone’s guess,” said Wigen. “I always tell people to prepare for the worst, but hope for the best.”